HomeMy WebLinkAbout09-2641BENJAMIN R. WALKER, single man,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
and
KEITH S. ENGLE, as Executor of
the Estate of DANIEL B. W. ENGLE,
deceased; late of the Borough of
Mechanicsburg, Cumberland County,
Pennsylvania,
Plaintiff
CIVIL ACTION - LAW
NO. .69 -,21,Yl CIVIL 2009
VS.
CitiFinancial Services, Inc.
Defendant
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following
pages, you must take action within twenty (20) days after this complaint and notice are served, by
entering a written appearance personally or by attorney and filing in writing with the court your defenses
or objections to the claims set forth against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the court without further notice for
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Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013-3302
(717) 249-3166
BENJAMIN R. WALKER, single man, IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
and
KEITH S. ENGLE, as Executor of CIVIL ACTION - LAW
the Estate of DANIEL B. W. ENGLE,
deceased; late of the Borough of
Mechanicsburg, Cumberland County, NO.CIVIL 2009
Pennsylvania,
Plaintiff
vs.
CitiFinancial Services, Inc.
Defendant
COMPLAINT TO QUIET TITLE
AND NOW, comes the Plaintiffs, BENJAMIN R. WALKER, single man, and KEITH S.
ENGLE, as Executor of the Estate, of DANIEL B. W. ENGLE, deceased; late of the Borough of
Mechanicsburg, Cumberland County, Pennsylvania, by and through their attorney, for the
purposes of this Quiet Title Action, Charles E. Shields III, Esquire, of 6 Clouser Road,
Mechanicsburg, Monroe Township, Cumberland County, Pennsylvania, and make this complaint
against the Defendant herein named, its predecessors, successors, agents, and assigns, and
against any right, title, estate, lien or interest in the real estate property described herein adverse
to the titles of the Plaintiffs herein and for cause of action alleges the following:
PARTIES PLAINTIFF
1. The Plaintiff, BENJAMIN R. WALKER, is a single man and an adult individual who
currently resides at 1 Gail Court, Robinsville, New Jersey 08691 and who owns the subject
premises at 412 Rear South Frederick Street, in the Borough of Mechanicsburg, Cumberland
County, Pennsylvania 17055.
2. The Plaintiff, KEITH S. ENGLE, is an adult individual, and is the duly qualified
Executor of the Estate of DANIEL B. W. ENGLE, deceased, late of the Borough of
Mechanicsburg, Cumberland County, Pennsylvania, the said DANIEL B. W. ENGLE having
departed this earthly life on the 15th day of September 2006, and the said KEITH S. ENGLE
having been issued Letters Testamentary upon the Last Will and Testament of said decedent by
the Honorable Glenda Farner Strasbaugh, the Register of Wills in and for Cumberland County,
Pennsylvania on the 20th day of September 2006. Mr. Engle is represented for Estate settlement
purposes as related to this Quiet Title Action by David H. Stone, Esquire, of Stone, LaFaver &
Shekletski, Attorneys at Law, 414 Bridge Street, Post Office Box E, New Cumberland,
Cumberland County, Pennsylvania 17070, which address is the one pertinent for all
communications regarding this Quiet Title Action. Mr. Engle has a personal residence address
of 533 Market Street, New Cumberland, Cumberland County, Pennsylvania 17070. (A short
certificate evidencing such appointment is attached hereto and made a part hereof).
DEFENDANT
3. THE DEFENDANT, CitiFinancial Services, Inc., a corporation within the operating
umbrella of Citigroup, Inc., having an address among others, of 605 Munn Fort Road, Fort Mill,
South Carolina 29715 and a Registered Agent in this Commonwealth, to wit: CT Corporation,
123 Broad Street, Philadelphia, Pennsylvania 19109, is the said Defendant herein by virtue of
various and sundry mergers, acquisitions, and the like which are more fully set forth at large
hereinbelow.
3a. AVCO FINANCIAL SERVICES, Consumer Discount Company, a.k.a. AVCO Financial
Services, Inc., then of 3542 Gettysburg Pike, Camp Hill, Cumberland County, Pennsylvania, was
the original mortgagee of the 1979 mortgage here in question.
In 1984, AVCO FINANCIAL'S parent organization, AVCO CORP., became the
acquisition target of Textron, Inc., a large conglomerate. The acquisition was subsequently made
and completed and AVCO was regarded as a wholly owned subsidiary of Textron, Inc. In early
1999 "The Associates," a.k.a. Associates First Capital Corporation closed its largest acquisition
ever, that of AVCO FINANCIAL SERVICES. On November 30, 2000, Citigroup, Inc., acquired
"The Associates." Counsel for Plaintiff's was directed by persons within Citigroup, Inc., to
make all further contacts and communications to CitiFinancial Services, Inc., and corporations
within the umbrella operations of CitiGroup, Inc. Thus CitiFinancial Services, Inc. is named as
Defendant herein.
3b. Counsel for Plaintiffs has had repeated correspondence and phone conversations with
persons within the legal department of Defendant. All efforts to amicably resolve this matter
have been unavailing. Hence, the necessity for this Quiet Title Action.
3c. Since all relevant papers regarding the presumed payment appear to be lost, Plaintiff
Engle is unable to prove payment and therefore must rely on the available legal presumption.
Since absolute proof of payment cannot be provided to Defendant, Plaintiff Engle is not able to
use the statutory mechanism to force a Satisfaction by Defendant nor to subject Defendant to the
statutory penalties for refusal to do so.
3d. At the time of Daniel B. W. Engle's death he was not making any payments to AVCO
FINANCIAL SERVICES nor to any of its above named successors, nor had he been making any
such payments for years. Plaintiff Engle therefore believes and avers that payment has, in fact,
been made in full.
DESCRIPTION OF SUBJECT PREMISES
4. ALL THAT CERTAIN lot of ground situate on the west side of South Frederick Street in
the Borough of Mechanicsburg, Cumberland County, Pennsylvania, more particularly bounded
and described as follows, to wit:
BEGINNING at a point on the street line of said Frederick Street and at corner of South
Alley; thence along said street line southward sixty two and five-tenths (62.5) feet to a point at
corner of lot now or formerly of George S. Markley; thence along the line of said lot now or
formerly of George S. Markley westward two hundred twenty two (222) feet, more or less, to an
alley; thence along said alley northward eighty-four (84) feet to a point at South Alley aforesaid;
thence along said South Alley eastward two hundred twenty two and five-tenths (222.5) feet,
more or less to a point on the street line of said Frederick Street, at the place of BEGINNING,
having thereon erected a frame dwelling house and other necessary out buildings.
5. The aforesaid description is that which appears on the mortgage which is the primary
subject of this Quiet Title Action. The above described lot has since been divided into two (2)
separate segments or tracts now held by Plaintiff Walker and by the Sweetras as will be more
fully explained and set forth at large hereinbelow. (See the Drafts attached hereto, incorporated
herein and made a part hereof and which are designated as Exhibits A and B).
JURISDICTION AND VENUE
6. The Jurisdiction and Venue of the instant case lie in your Honorable Court of Common
Pleas by virtue of the powers resident therein as established by the General Assembly of this
Commonwealth and by virtue of the Rules of Civil Procedure as set forth by the Supreme Court
of this Commonwealth as is more fully set forth at large in 42 Pa. C. S. A. § 701 et sea and Pa.
R.C.P. 1061, et sea and as may conveniently be seen in Hess, Mendelsohn and Shughart, Jr.,
Pennsylvania Civil Practice, "The Courts," paragraphs 1.3, 1.4, and 1.7; and "Action To Quiet
Title," paragraphs 18.1, 18.3 (3`d ed. 1998)
RELEVANT CHAIN OF TITLE
7. For convenience of your Honorable Court, the unified chain of title shall be first given
and then the separated and divided chains next given, as follows:
(A) George Edward Hurst, Executor of the Last Will and Testament of Amos Hurst,
deceased, and Mary A. Hurst, widow of the said Amos Hurst, granted and
conveyed the above described premises to Samuel M. Engle by deed dated May 3,
1924 and recorded May 8, 1924 in the Recorder's Office in and for Cumberland
County, Pennsylvania in Deed Book "U," Volume 9, Page 249.
(B) The said Samuel M. Engle, joined by his wife, Emma J. Engle, granted and
conveyed the above described premises to Daniel B. W. Engle and Mary Jane
Engle, his wife, by deed dated August 20, 1956 and recorded August 28, 1956 in
the Recorder's Office aforesaid in Deed Book "J," Volume 17, Page 175.
DIVISION OF CHAIN OF TITLE INTO GELSINGER TRACT
8. The said Daniel B. W. Engle and Mary Jane Engle, his wife, granted and conveyed the
immediately following described premises to Charles W. Gelsinger and Virginia M. Gelsinger,
his wife, by deed dated May 17, 1963 and recorded May 22, 1963 in the Recorder's Office
aforesaid in Deed Book "N," Volume 20, Page 874 (the "Gelsinger premises"):
ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg,
County of Cumberland and State of Pennsylvania, bounded and described as follows, to wit:
BEGINNING at a point at the intersection of the western line of South Frederick Street
with the southern line of a twenty (20) foot alley known as South Alley; thence in a southerly
direction along the western line of South Frederick Street, sixty-two and five-tenth (62.5) feet to
s
a point; thence by lands now or formerly of Charles Markley, in a westerly direction, one
hundred fifteen (115) feet, more or less, to a point; thence in a northerly direction by other lands
of the grantors herein, seventy-two (72) feet, more or less, to a point on the southern line of
South Alley; thence by the southern line of South Alley in an easterly direction one hundred
thirteen and five-tenth (113.5) feet, more or less, to a point the place of BEGINNING.
HAVING thereon erected a frame dwelling house and a tax identifier No. of 16-24-0787-
102.
8a. The said Charles W. Gelsinger and Virginia M. Gelsinger, his wife, granted and
conveyed the immediately above described premises to Thomas Rizzutto and Trudy Joy
Rizzutto, his wife, by deed dated June 29, 1984 and recorded July 2, 1984 in the Recorder's
Office aforesaid in Deed Book "T," Volume 30, Page 668.
8b. The said Thomas Rizzutto and Trudy Joy Rizzutto, his wife, granted and conveyed the
said premises to the same said Thomas Rizzutto, by deed dated May 4, 1994 and recorded May
9, 1994 in the Recorder's Office aforesaid in Deed Book 105, Page 52.
8c. The said Thomas Rizzutto granted and conveyed the said premises to the same said
Thomas Rizzutto and his then new wife, Lucette M. Rizzutto, by deed dated May 20, 1996 and
recorded May 21, 1996 in the Recorder's Office aforesaid in Deed Book 139, Page 709.
8d. The said Thomas Rizzutto and Lucette M. Rizzutto, his wife, granted and conveyed the
said premises to Patsy W. Kunder, single woman, by deed dated May 2, 1997 and recorded May
8, 1997 in the Recorder's Office aforesaid in Deed Book 157, Page 362.
8e. The said Patsy W. Kunder, having resumed her maiden name of Patsy C. Wright, granted
and conveyed the said premises to herself under the name of Patsy C. Wright by deed dated
August 26, 1998 and recorded August 31, 1998 in the Recorder's Office aforesaid in Deed Book
184, Page 507.
8f. The said Patsy C. Wright now by marriage known as Patsy C. Wright-Sweetra, granted
and conveyed the said premises to the same said Patsy C. Wright-Sweetra and John J. Sweetra,
her husband, by deed dated March 21, 2001 and recorded March 28, 2001 in the Recorder's
Office aforesaid in Deed Book 241 Page 769.
RETENTION OF ENGLE/WALKER CHAIN
9. After the grant and conveyance of the above-described "Gelsinger premises" to the said
Gelsingers, the said Daniel B. W. Engle and Mary Jane Engle, his wife, retained the balance of
the premises hereinabove described in Paragraph 5, which are the subject of this instant Quiet
Title Action. The retained premises being more fully herein described as follows, to wit:
ALL THAT CERTAIN lot of ground situate on the West side of South Frederick Street in the
Borough of Mechanicsburg, Cumberland County and State of Pennsylvania, bounded and
described as follows, to wit:
BEGINNING at a point on the street line of said Frederick Street and at corner of South Alley;
thence along said street line Southward sixty-two and five tenths (62.5) feet to a point at corner
of lot now or formerly of George S. Markley; thence along the line of said lot now or formerly of
George S. Markley Westward two hundred twenty-two (222) feet, more or less to an alley;
thence along said alley Northward eighty-four (84) feet to a point at South Alley aforesaid;
thence along said South Alley Eastward two hundred twenty-two and five tenths (222.5) feet,
more or less, to a point on the street line of said Frederick Street, at the place of BEGINNING.
7
BEING THE SAME PREMISES which Samuel W. Engle and Emma J. Engle, husband and
wife, by Deed bearing date the 22nd day of August, 1956, and recorded on 28th day of August,
1956, in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in
Deed Book J-17, Page 175, granted and conveyed unto Daniel B. W. Engle and Mary Jane
Engle, husband and wife.
EXCEPTING AND RESERVING therefrom the following tract:
ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, County
of Cumberland and State of Pennsylvania, bounded and described as follows, to wit:
BEGINNING at a point at the intersection of the Western line of South Frederick Street with the
Southern line of a twenty (20) foot alley known as South Alley; thence in a Southerly direction
along the Western line of South Frederick Street, sixty-two and five tenths (62.5) feet to a point;
thence by lands now or formerly of Charles Markley, in a Westerly direction, one hundred
fifteen (115) feet, more or less, to a point; thence in a Northerly direction by other lands of the
grantors herein, seventy-two (72) feet, more or less, to a point on the Southern line of South
Alley; thence by the Southern line of South Alley in an Easterly direction one hundred thirteen
and five tenths (113.5) feet, more or less, to a point the place of BEGINNING.
Said Tract having a Tax Parcel Identifier No. 16-24-0787-100
BEING THE SAME PREMISES which Daniel B. W. Engle and Mary Jane Engle, husband and
wife, by Deed Dated 17d' day of May 1963 and recorded 22"d day of May 1963 in the Office of
the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book N20, Page
874, granted and conveyed unto Charles W. Geisinger and Virginia M. Geisinger, husband and
wife.
10. The said Mary Jane Engle departed this earthly life on the 19d' day of August 1988,
whereupon full and absolute title to the aforesaid retained portion of the premises vested in her
said surviving husband and widower, Daniel B. W. Engle, by the laws of this Commonwealth
incident to tenancies by the entireties.
11. The said Daniel B. W. Engle, acting by and through his Agent, Keith S. Engle, he having
been duly and properly appointed as such Agent by virtue of a General and Durable Power of
Attorney instrument dated the 22nd day of January 2003, and recorded July 19, 2005 in the
Recorder's Office aforesaid in Miscellaneous Book No. 719, Page 1134, granted and conveyed
the said retained portion of the premises to the said Benjamin R. Walker, by deed dated July 15,
2005 and recorded July 19, 2005 in the Recorder's Office aforesaid in Deed Book 269, Page
4849.
11 a. Said Deed from Engle to said Walker contained a warranty clause by which Plaintiff
Engle's Executor is obligated to provide a good and marketable title. Said obligation confers an
additional interest in this litigation upon Plaintiff Engle's Executor. Thus, he is acting as a party
Plaintiff herein.
THE MORTGAGE
12. Approximately sixteen (16) years after their above referenced grant and conveyance to
the said Gelsingers, Daniel B. W. Engle, a.k.a. Daniel B. Engle, and Mary J. Engle, his wife,
executed a mortgage instrument as Mortgagors in favor of AVCO FINANCIAL SERVICES
Consumer Discount Company One as Mortgagee. AVCO then having a listed address as 3542
Gettysburg Pike, Camp Hill, Pennsylvania 17011. Said Mortgage bore date of November 16,
1979 and was recorded on December 20, 1979 in the Recorder's Office aforesaid in Mortgage
Book Vol. 674, Page 239. (See a true and correct copy attached hereto, incorporated herein, and
made a part hereof as Exhibit Q.
13. Despite having already made the above referenced grant and conveyance to the said
Gelsingers, the premises made subject to the mortgage nevertheless include the entire original
Engle premises, as described more fully herein at Paragraph 5 above and herein for your
Honorable Court's convenience, as follows, to wit:
BEGINNING at a point on the street line of said Frederick Street and at corner of South Alley;
thence along said street line southward sixty two and five-tenths (62.5) feet to a point at corner of
lot now or formerly of George S. Markley; thence along the line of said lot now or formerly of
George S. Markley westward two hundred twenty two (222) feet, more or less, to an alley;
thence along said alley northward eighty-four (84) feet to a point at South Alley aforesaid;
thence along said South Alley eastward two hundred twenty two and five-tenths (222.5) feet,
more or less to a point on the street line of said Frederick Street, at the place of BEGINNING,
having thereon erected a frame dwelling house and other necessary out buildings.
14. Said Mortgage document contains the usual and proper words of a mortgage which work
a conveyance of title from the mortgagor to the mortgagee for limited and conditional purposes
under the laws of this Commonwealth, as follows, to wit:
"WITNESSETH, that the Mortgagor(s), does Mortgage, grant and convey to Mortgagee,
its successors or assigns the following described Real Estate... together with all buildings and
improvements now or hereafter erected thereon the appurtenances thereunto belonging and the
rents, issues and profits thereof."
15. The Estate conditionally granted to the said Mortgage was further defined and delimited
by the usual and proper habendum clause operative under the laws of this Commonwealth, as
follows, to wit:
10
"TO HAVE AND TO HOLD the above-described premises, with the appurtenances and
fixtures, unto the said Mortgagee, its successor and assigns, forever, for the purposes and
benefits under and by virtue of any Homestead Exemption Laws of the State of Pennsylvania as
now or hereafter enacted, which said rights and benefits the said Mortgagor does hereby
expressly release and waive."
16. Said Mortgage also contains the standard security clause, referring to additional loan
related documents, and providing for a payment due date, as follows, to wit:
"FOR THE PURPOSE OF SECURING: (1) Performance of each agreement of
Mortgagor contained herein: (2) Payment of the principal sum with interest, as provided in
accordance with the terms and provisions of a Loan Agreement/Promissory Note (hereinafter
referred to as "Loan Agreement") dated November 16, 1979, herewith executed by Mortgagor,
or anyone of them, and payable to the order of Mortgagee, in the principal sum of $4,999.78, and
having the date of its final payment due on December 26, 1979..."
DEFEASANCE CLAUSE RE: DEFEATING MORTGAGEE'S TITLE AND ESTATE
17. The said Mortgage in item (3) contains the standard defeasance clause, as follows, to wit:
"If Mortgagor shall pay said Loan Agreement at the time and in the manner aforesaid and shall
abide by, comply with, and duly perform all the covenants and agreements herein, then this
conveyance shall be null and void," said clause conforming to and fulfilling in all respects the
laws of this Commonwealth incident to defeasances as is more fully set forth at large in the Act
of June 8, 1881, P.L. 84, as amended by the Act of April 23, P.L. 137, section 1, 21 P.S. section
951 and in the accompanying and relevant case law regarding defeasances of property and title
granted and conveyed to mortgagees by mortgagors.
11
18. Under the laws of this Commonwealth upon the payment in full of all payments as agreed
to and required by the terms of the said mortgage and the accompanying promissory note/loan
agreement, The conditional title and estate granted and conveyed to the mortgagee are defeated
and made void and of no force or effect.
APPLICABLE STATUTES OF LIMITATIONS AND PRESUMPTIONS OF PAYMENT
RE: THE MORTGAGE
19. Pennsylvania has adopted the Uniform Commercial Code, which is found at 13 Pa.
C.S.A. section 3101 et sec as applicable to negotiable instruments. Section 3104 thereof defines
in detail "negotiable instruments." Mortgages have not been and are not considered to be
negotiable instruments under the Uniform Commercial Code and are therefore controlled by the
general statutory limitations and by common law rules, principles, and presumptions.
20. The said Mortgage instrument was signed by the said Engles as mortgagors under seal,
thus making the said Mortgage a "specialty" under the laws of this Commonwealth.
21. Under the limitation laws of this Commonwealth, as set forth more fully at large at 42 Pa.
C.S.A. section 5529 (b), all cause and rights of action upon any specialty or instrument in writing
under seal must be commenced within twenty (20) years from the date the cause of action arises.
22. The cause or right of action of defendant herein arose, if at all, at 12:01 A.M. December
27, 1979. Thus, defendant's cause of action on the mortgage expired in December of 1999.
Defendant has thus lost its cause of action. However, under the laws of this Commonwealth the
actual debt itself is not barred nor deemed void.
23. The common law of this Commonwealth presumes that the debt itself has been paid in
full upon the passage of twenty (20) years from the date due as said date is set forth immediately
herein above. This presumption gains strength each year beyond the twentieth (20th). Upon
12
reaching a period of thirty (30) years the presumption is generally deemed virtually conclusive
and beyond any rebuttal. The time period currently elapsed is over twenty-nine (29) years
making the presumption of payment in this case as strong as it can be without being held to be
legally absolutely conclusive.
THE PROMISSORY NOTE/LOAN AGREEMENT AND APPLICABLE
LIMITATIONS AND PRESUMPTIONS.
24. Plaintiffs have found no promissory note nor other loan agreement or related papers. If
such papers or documents exist they are likely within the exclusive control and dominion of
defendant.
25. If the promissory note exists and if its contents and terms conform to the standard and
usual usages it will be within the Pennsylvania Uniform Commercial Code. 13 Pa. C.S.A. section
3104 and, unlike the mortgage herein, will be considered a negotiable instrument.
26. As a negotiable instrument the promissory note and/or loan agreement will be subject to a
four (4) year statute of limitation as per 42 Pa. C.S.A. section 5525 (7). As a negotiable
instrument, the cause of action, if any there be, arose on the due date aforesaid and thus the cause
of action was lost in December of 1983.
27. If the promissory note and/or loan agreement exists and it does not conform to the
requirements necessary to make it a negotiable instrument, then the longest statute of limitations
available to it would be if it were regarded as a "specialty" or an instrument under seal.
28. Under the limitation laws of this Commonwealth as set forth more fully at large at 42 Pa.
C.S.A. section 5529 (b), all causes and rights of action upon any specialty or instrument in
13
writing under seal must be commenced within twenty (20) years from the date the cause of
action arises.
29. It is the usual practice for a promissory note, and loan agreement which is secured by a
contemporarily executed mortgage, to bear same due date as such mortgage. Accordingly, upon
such assumption and belief based on standard custom, the cause of action on the note of the
defendant herein arose, if at all, at 12:01 A.M. December 27, 1979. Thus, defendant's cause of
action on the note and/or loan agreement would have expired, at the latest, in December of 1999.
Defendant has thus lost its cause of action and cannot obtain a judgment by suit, by confession,
or otherwise. However, under the laws of this Commonwealth the actual debt itself is not barred
nor deemed void.
30. As related above, the common law of this Commonwealth presumes that the debt itself
has been paid in full upon the passage of twenty (20) years from the date due as said date is set
forth immediately herein above. This presumption gains strength each year beyond the twentieth
(201h). Upon reaching a period of thirty (30) years the presumption is generally deemed virtually
conclusive and beyond any rebuttal. The time period currently elapsed is over twenty-nine (29)
years making the presumption of payment in this case as strong as it can be without being held to
be legally conclusive.
POSSESSION OF PLAINTIFFS
31. Plaintiff Walker and his aforesaid predecessors in title, have been continuously in
possession of and resident on their portion of the said mortgaged premises for a period in excess
of twenty-one (21) years.
32. Plaintiff Walker and his aforesaid predecessors in title have paid property taxes on their
portion of the said mortgaged premises for a period in excess of twenty-one (21) years.
14
CLOUD ON TITLES
33. There is currently a cloud upon the titles of the Plaintiffs aforesaid in that the above
referenced and described mortgage purportedly encumbers the premises and exposes all
Plaintiff's herein and any assignee, grantee, devisee, heir, or the like to the hazards of litigation.
34. There is currently a possible or arguably nascent cloud upon title in that there appears to
be an uncancelled or returned promissory note and/or loan agreement that could arguably be used
in some fashion to seek or to confess a judgment. Thus possibly exposing Plaintiffs herein and
any assignee, grantee, devisee, heir, or the like to an additional possible hazard of litigation.
REMEDY AND ORDER
WHEREFORE, Plaintiffs respectfully request that a Rule be granted on Defendant to
show cause, if any it has, why it should not be named Defendant herein and why it should not
provide a Satisfaction Piece in a proper and recordable form to mark said Mortgage Fully paid
and satisfied.
Respectfully submitted by,
Charles E. Shields, III, Esquire
6 Clouser Road
Mechanicsburg, PA 17055
(717) 766-0209
PA S. Ct. ID No. 38513
15
BENJAMIN R. WALKER, single man,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
and
KEITH S. ENGLE, as Executor of
the Estate of DANIEL B. W. ENGLE,
deceased; late of the Borough of
Mechanicsburg, Cumberland County,
Pennsylvania,
Plaintiff
CIVIL ACTION - LAW
NO.
vs.
CitiFinancial Services, Inc.
Defendant
VERIFICATION
CIVIL 2009
I, BENJAMIN R. WALKER, Petitioner in the attached Petition concerning the
Complaint in Quiet Title Action, hereby verify that the facts recited by my counsel, Charles E.
Shields, III herein, based upon his research and investigation are true and correct to the best of
my knowledge, information and belief. I make this verification subject to penalty for unsworn
falsification to authorities (18 Pa. C.S.A. Section 4904).
6 ? 4j?
Witness
` V
B J N R. WALKER
16
BENJAMIN R. WALKER, single man,
Plaintiff
and
KEITH S. ENGLE, as Executor of
the Estate of DANIEL B. W. ENGLE,
deceased; late of the Borough of
Mechanicsburg, Cumberland County,
Pennsylvania,
Plaintiff
vs.
CitiFinancial Services, Inc.
Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CIVIL ACTION - LAW
NO. CIVIL 2009
VERIFICATION
I, KEITH S. ENGLE, As Executor of the Estate of Daniel B. W. Engle, deceased,
Petitioner in the attached Petition concerning the Complaint in Quiet Title Action, hereby verify
that the facts recited by my counsel, Charles E. Shields, III herein, based upon his research and
investigation are true and correct to the best of my knowledge, information and belief. I make
this verification subject to penalty for unsworn falsification to authorities (18 Pa. C.S.A. Section
4904).
ITH S. E
17
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MORTGAGEE:
MORTGAGE AVCO FINANCIAL SERVICES
Discount Comanny One
wCCOUNT NUMBER
MOnTGAGOR151: 1J26IM21j 3542 Gettysburg Pike
LwYT NAME PIflST INITIAL pOR RO WER'S NAM[
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i i,.nr).c Daniel B r•.r .J _ PtiNNS17t61P?A
W1 I IMISS11 11. Chat M lcuguro), does mortgage, grant and eon-y tit Mortgagee, its succcsson or assigns the following described heal Estate in rise
mlltty..,I Cumberland stale of Pcsnsyhmtta, to ,vjt:
BEGINNING at a p(hir,t on the street line of said Frederick Street and at corner of
South Alley;thence along said rtreet line southward sixty taro and fine-tanths (62.5)
feet to a poing at corner of lot now or formerly of George S, Markley; thence along the
line of said lot now or formerly of George S. Markley westward two hundred tvienty two (222)
fact, .nor or less, to an alley; thence along said alley northward eighty-four (34) feet
to a point at South Alley aforesaid; thence along said South Alley eastward two Jffiundred twenty
two and five-tenths (222.5) feet, more or less to a noiht on the street line of said
Frodericle Stitac't, at the place of BIDGIIIHING, having thereon erected a frame dwcllin.? hobo(-'
and other nocersary out buildings,
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logelhcr with aR buildings and imptovements now or hereafter erec[eJ thereon the appurtenances thereunto belonging and the rents, issue and profits thereof
TO RAVE AND TO IIOLD the above-described prcmiscs, with the appurtenances and fixtures. unto the said Morlcacce, its ucccCscrs and assigns , forever, for the
purposes and uses herein set forth, free from all right. and benefits under and by virtue of any Homestead Excmption Laws of the State of Pennsylvania as now m
hereafter enacted, which mid righ is and benefits the said Mortgagor does hereby expressly release and waive.
FOR TIIE PURPOSE OF SECURING: (1) Performance of cacti agreement of Mors a,or contained hescin; (2) Pavmen[ of [he principal sum with interest, as
provided in accordance with tile" terms and provisions of a Loan AgrecmCnl/Promissory Note (hereinafter referred to as "Loan Agreement") dated
i;ovmeber 16, 1g79 , lnercu•im executed by Alorlgagol,or any one of (hem, and payable to the order of
Alorlgayce, in the principal sum of s 4999.78 , and having the dale of its final paytncnl due on December 26, 1979
or is extended, deferred or rescheduled by renewal or refinance; (J) Pay cot of any additions) advances, with interest thereon, as may hereafter be loaned by.
Aluflgagee lit Murlgagur in a naxitmsm of S 0 8428,20 provided, Ihjs provision does not constitute a commitment to make future advane,%;
(4) 171, p;,y,-nl of any money (h.[ may be ndvineed by the Alnrtgxgee to Morten- Cur any reason or to third parties, with interest Ibocon, where the amounts
e advanced to p-leet the security or in accordance with the corweuanls of (his Mortgage: (5) Any renewal, refinancing or extension of snit Loan Agreement, or
any other acrecmcnl it, pay which may be substituted therefor.
All pay lllen is made by Murlgogor oil lie oblleattolt scented by this Morigage shall be applied in the following older;
FIRST: To lire payment of IaxCs and assessments Elba[ may be levied and assessed against said prcmiscs, insurance premiums, mpain. and all other
charges :m I expeller agreed w he paid by the Alorlgngot.
SF.(YIND: Tit the poyntenl of interest due ern Ya id luau.
THIRD: To the payment of priccipal.
lO 11RO'FECT'Fill' SI(C•UIUTY HEREOF, MORTGAGOR(S) COVENANTS AND AGREES: (1) to keep said premises insured against less by fire and other
harard>, ao.uaUy and contingencies up to the full ratite or all improvements fur she protection of Mortgagce in such manner, in such amounts, and in
itch r ntpa cs
o as Mortgage, may from time h, time approve and that loss p,ocrc,ls (less expense of collection) 'hall, at Alorlgayet: s option, be applied
` 1, usJchts••hwss. n•hc11- one or nut or In the resluralum of said improvements. In event of loss Mortgagor will give imnmdintc notice by mail to die
Mitngagec, ,vbu nay make proof of loss if not made pruniplly br Mortga:or, and each insurance company concerned is hereby au l hotized and dirteled to
make paynwm tin v,ch loss dneclly It, Ihr Mortgagee inst-I of to the Molpagut. (2) Tn pay all Cases anti special assessments of any kind drat have
burn m may be Ies.I err a.ex.ed upon said premises, and to deliver to \lorieaeev. upon request of [hr Alorlgagec. the ulbcial recent[ showing paymcal
ul all itch saxes and a ussmcuts. (1) In tire event of default by Merleagor under Paragraphs I or 2 above, Morlgaecc. aI Its upliun. Ill.,), la) place and
keep sldl p r a As- pruvided fur in fore Ihrmngi ul the tic, of this Itlorlgegv and pay the l aYonabie premiums and eharees there(ur. (bl pay all
.saCJ la- and a ssva Icnis wlChuul detennining the vabdlt' thereof. and (e) Pay such Rent amt ell sit 1. Jisbursemcn 1. shall be deemed s purl of the C.ueblcdness
red be (his sxtorlgage and shall he ni-dalely due and parable I,) \Jo,tgago, Ie M.rigague. (q) Nor to commit or suffer any wattt or an)- I- o['snd
Issrmi., conuw3 h, "i nc(§ I. of record or contrary to laity. (5) jr a vgner of the Loan Agreement. Iha[ he will pay, promptly thr inJcbtedness secured hereby,
and pen i,nn ail When ohiicatjuns I. full e-Cphance with file terns of said Loan Agreement and this Morigagc: (6) Thai the time of payment of Iha ndeb¢dness
It: why .ccu,rd. a W any portion 1h-1, may be extended nr "Clewed, and any portions of the prcmiscs herein described may, ,sigh inn netiee. be rclcascti hoer
the live hen•uf. w'dC uI "leasing or of!acting die personal liability of any person or the pliurity of this Muriggt:
IT IS MUTUALLY AGREED TIIAT: (1) li It,, ..it Mortgagor shall fail or nculcci tit pay installments nn said Loan A-en cut or upon def-H in performance of
Tent hert9mder. or upon rate or other disposition of the premises by Mortgacm, or shouid any aeliitn itr proceeding be fileit in any court to enforce am
It nor c6l n against u interest in the pwmi-, Ihcm all sums owing by the Mortgagor ,I any one of Ihcm to the 7.fort under this Alorq:agu err It, the Wan
.1grc••luenh w d hereby shall it t nediatcly become d„c and payable as the option of Ihr \I nrly;agec. In such es•cn, dlc M-tgucce h
sall hart the right immudim0y
,• 1.11-1s1 tilerco mortgage by complaint for dot par pe.. and such a Illpluint may be ptusecuted to judgmenl and exeemion Anil all for the eolleetion of the Nhnlc
err ni Iha in.IrinrJ pass and in to coil thereon, ineludin oa,onablc auumcy's I"res. any anlonnu, advanced purnianl to it,,, me, tgaeq cost, of sun 1. and costs of
?dr"ii 1,.rnnird b)' law.
t 21 W'h:nrrcl. [,y the wens itf this -t-menl l of said Loan Agreement. %I Icar" t, g ran any option. such upliun may he c cried when (it, right
bow thereafter, and no acceptance by Morigage, of payment of niebtcdness it, deimdt siuii constitute a -ver of any default then
w•tmp :m.h,nmm,.nlg or Cbvreai a•r aceninc.
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l?l by Ye)rtln•. payment W any 'I'm ed :rehy after .1. rue dale. rrnng:reee'I.- nol naive 1" r.;,01 elI_ to r.,luira .t
In. mpr pa •nl hen Ju.
of all ether sums sit -o"d ar ru deeianl delmdl fm fadun• w w pay. lII llnrlgagur shall pay i:uI Loan Agmemenl It Ill, lint, and rrol the nuuner 'I
aiw-id and shall abide by, wnlply wail, and dull' perform all the oven,o i curl agre'ement's herein. Then This conveyance shall be null :mJ vuhl.
N) Lac:pt as ofhenvise provided beam, all slnr¢eeurs shall hcpsinlly and severally liable for lull illntcn; U( Illelr C1yClta tt is allrl aNNClll t'rtfs hcnin con rained, and
Al I",-units of this Mnrtga>:c dull inure I. and be binding upon file hells, executors. adnltnlstrabrs, successors, graltlecs, to%seet and aisnois of the panics heleln
respecuvd y. Any rc•fe-ce in Ihss Mongage of the singular shall he eonsUUCd at plural Mierc approptiate.
(5) Invalidity or unc•nforccabihry of any provisions neteht shall not ml.c. the validity and cnforcubilily of .sly oWar provisions.
(it) If any of the undersigned is a molted person, he rcpre.acn is and warrants rhaI tit is ins i ruincni hits been e.ceutcit in his belulf, and fur his title and s•
sparow us,
and benefits and that he has note.eccuted Utc same as surety for another, but that he is the Borrower hereundet.
IN WITNESS WIIERLOF, tills llurteage Iris been dulY --led this date
Signed, reined and delivered in the prcscnrc of.
f r -?o'llnns
COAtl10N\YL\LTIhOF PIiNNSYLVANIA, COUNTY OF
CCu...bbarlandd
On this, 11-16 it,, of Novenner ; A.D.,.
19 79 , before me Thomas Selnones
fire undersi^ned oflicer personally appuretl Daniel B.
En Rre and Nary J. Engle
known lit me (or satisfactorily proven) to be Ilse person(s) s whose
name(s) 8 subscribed to the within instrument and acknowledged that
tnJLesecuted Ihu same for this purposes therein contained.
IN WITNESS WHEREOF: I hereunto sot my hand and official seal.
public
My
'., P,' i•nue of Ificed
COMMONWEALTH OF P17NNSYLVANIA I
November 16, 1979
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Nuagago • Ifo"ou."
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- UlIgaFOr . lJOrlul.li
COMI%YEALT11 OF PENNSYLVANIA, COUNT)' OF
fGumbe rlartd
CERTIFICATE OF RESIDENCE
The nlongagee hereby certifies that A11CO Financial Services
Consumer Disocunt Company One
precise residence is 3542 Gettysburg Pike
Camp Hill, PA 17011
\Y{)acts'-` and =? tltis /? day ul'
( s. R•
COUNTY OF Cumberland la -, -
t
Recorded on this 1/r/ / day of A.D. 19 zL J n fit. Recorder's Office
of the said County, in Mortgage Book. Vol - /p 7%'?__._ caul. •,2 J 9 ..
Given under my hand and the seal of the said office the day and year aforesoid.
c
Recorder
RECORD DATA of PENNSYLVANIA INC. SPAYLIE TIMES BUILDING, Sul f c ?3r
8001 ROOSEVELT BOULEVARD
PHILADELPHIA, PENNSYLVANIA 191:52
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Sheriffs Office of Cumberland County
R Thomas Kline wit cv 0? curgbrfil??0 Edward L Schorpp
Sheriff Solicitor
Ronny R Anderson Jody S Smith
Chief Deputy OFFICE OF '"E 5"ER'`r Civil Process Sergeant
SHERIFF'S RETURN OF SERVICE
04/28/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and
inquiry for the within named defendant, to wit: CitiFinancial Services, Inc., but was unable to locate them
in his bailiwick. He therefore deputized the Sheriff of Philadelphia County, PA to serve the within
Complaint to Quiet Title according to law.
05/04/2009 Philadelphia County Return: And now, May 4, 2009 I, John D. Green, Sheriff of Philadelphia County,
Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for CitiFinancial
Services, Inc. the defendant named in the within Complaint to Quiet Title and that I am unable to find them
in the County of Philadelphia and therefore return same NOT FOUND.
SHERIFF COST: $42.42
May 07, 2009
2009-2641
Benjamin K. Walker
VS
CitiFinancial Services, Inc.
SO ANSWERS,
R THOMAS KLINE, SHERIFF
n
C:) C)
CD °C
Sheriffs Office of Cumberland County
R Thomas Kline ?sWI%%, rC cumbrEdward L Schorpp
Sheri Solicitor
Ronny R Anderson Jody S Smith
Chief Deputy o ce OF say Civil Process Sergeant
i
SHERIFF'S RETURN OF SERVICE
05/15/2009 R. Tho2-sthe Kine, Sheriff who being duly swom according to law states that he made a diligent search and
inquiry within named defendant, to wit: CitiFinancial Services, Inc., but was unable to locate them
in his ba liwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint
and Noti according to law.
05/20/2009 11:30 A - Dauphin County Return: And now May 20, 2009 at 1130 hours I, Jack Lotwick, Sheriff of
Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within
Complai t, upon the within named defendant, to wit: Citifnancial Services, Inc. by making known unto
Bob Se ch, adult in charge at 116 Pine Street Suite 320 Harrisburg, Pennsylvania 17101 its contents and
at the s me time handing to him personally the said true and correct copy of the same.
SHERIFF COST: $37
May 26, 2009
41
n R. Walker
VS
cial Services, Inc.
7AN§(
RS, KLINE, SHERIFF
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BENJAMIN R. WALKER, single man,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
and
KEITH S. ENGLE, as Executor of
the Estate of DANIEL B. W. ENGLE,
deceased; late of the Borough of
Mechanicsburg, Cumberland County,
Pennsylvania,
Plaintiff
vs.
CitiFinancial Services, Inc.
Defendant
CIVIL ACTION - LAW
NO. &P?--?(V44/ CIVIL 2009
PRAECIPE
TO PROTHONOTARY:
Please mark the above-captioned action settled and discontinued.
Respectfully submitted by,
Clc?u F?/? ?
Charles E. Shields, III, Esquire
6 Clouser Road
Mechanicsburg, PA 17055
(717) 766-0209
PA S. Ct. ID No. 38513
Counsel for Plaintiffs
FILE ;
OF THE-
j'jN 19 A 11: 4 8
2009
r ?; d
KIMBERLY A. EVANS,
Apellant
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
NO. 09-2641 CIVIL TERM
ORDER
AND NOW, this 19'h day of May, 2010, the petitioner having provided
proof of her medical competency and the recall of her license having been rescinded on
July 14, 2009, the appeal filed in the above referenced matter is REMANDED to the
Department of Transportation for correction of its records.
Attest:
/ Kimberly A. Evans, 60 W. Pomfret Street, Carlisle, PA 17013
~ Philip M. Bricknell, Esq., Pennsylvania Department of Transportation, Office of Chief
Counsel, 1101 South Front Street, 3rd Floor, Harrisburg, PA 17104-2516
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BY THE COURT: